CITY PROSECUTOR ARMANDO P.

ABANADO, complainant,
v
JUDGE ABRAHAM A. BAYONA, Presiding Judge, Municipal Trial Court in Cities,
Branch 7, Bacolod City, respondent.

FACTS:
The case sprang from a criminal case entitled People of the Philippines vs. Cresencio
Palo, Sr. It was initially handled by Investigating Prosecutor Dennis Jarder who found no
probable cause against Palo. However, complainant, upon review, found that there was
a probable cause against Palo. Thus, complainant disapproved Jarder’s Resolution and
filed the Information in court.

In connection with the issuance of a warrant of arrest against accused Palo, respondent
Judge Bayona issued an order directing complainant Abanado to present (1) a copy of
the Memorandum of Preliminary Investigation, (2) Resolution of the Investigating
Prosecutor Dennis Jarder, (3) Memorandum of the transfer of case assignment from
designated Investigating Prosecutor to the City Prosecutor, and (4) Exhibit to the Court,
to enable his court to evaluate and determine the existence of probable cause.

With respect to item 3, complainant explained in a letter that there was no memorandum
of transfer of the case from Investigating Prosecutor Jarder to him.

Respondent was dissatisfied with the explanation of the Office of the City Prosecutor. In
an Order, respondent stated that the Jarder’s Resolution dismissing the complaint was
part and parcel of the official records of the case and, for this reason, must form part of
the records of the preliminary investigation. He further stated that because there was a
conflict between Jarder’s and complainant’s resolutions, those documents were
necessary in the evaluation and appreciation of the evidence to establish probable
cause for the issuance of a warrant of arrest against Palo. He, thus, ordered
complainant to complete the records of the case by producing the Jarder’s Resolution.
The Office of the City Prosecutor again sent a letter explaining the impossibility of
submitting it to the court. The letter stated that the Resolution was no longer part of the
records of the case as it was disapproved by complainant.

Respondent did not accept the explanations made by the Office of the City Prosecutor.
In an order, he required complainant to explain why he should not be cited for contempt.
Complainant requested for a ten-day extension to comply with it but respondent denied
the request. He likewise ordered the Clerk of Court to issue a subpoena duces tecum
ad testificandum to Jarder directing him to testify on the existence of his resolution
dismissing the case against Palo and to Office of the City Prosecutor’s Records Officer
Myrna Vañegas to bring the entire record of the preliminary investigation of the Palo
case.

Aggrieved, complainant immediately filed a motion for inhibition against respondent and
a petition for certiorari with a prayer for the issuance of a temporary restraining order
(TRO) to restrain respondent from proceeding with the hearing of the contempt
proceedings. Complainant’s prayer for a TRO was granted by Presiding Judge Pepito
Gellada of the Regional Trial Court, Branch 53, Bacolod City.

Judge Gellada granted the petition for certiorari holding that when a city or provincial
prosecutor reverses the investigating assisting city or provincial prosecutor, the
resolution finding probable cause replaces the recommendation of the investigating
prosecutor recommending the dismissal of the case. The result would be that the
resolution of dismissal no longer forms an integral part of the records of the case. It is
no longer required that the complaint or entire records of the case during the preliminary
investigation be submitted to and be examined by the judge. The rationale behind this
practice is that the rules do not intend to unduly burden trial judges by requiring them to
go over the complete records of the cases all the time for the purpose of determining
probable cause for the sole purpose of issuing a warrant of arrest against the accused.
What is required, rather, is that the judge must have sufficient supporting documents
(such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his independent judgment
or, at the very least, upon which to verify the findings of the prosecutor as to the
existence of probable cause.

Complainant executed an administrative complaint and the same was received by the
Office of the Court Administrator (OCA). He alleged that respondent was guilty of gross
ignorance of the law or procedure and gross misconduct. He essentially asserted that
respondent unduly burdened himself by obsessing over the production of the records of
the preliminary investigation, especially Jarder’s Resolution. Respondent, in his
Comment with Counter-Complaint for Disbarment of Prosecutor Abanado, reiterated the
importance of the Jarder’s Resolution in deciding whether to issue a warrant of arrest.

The OCA submitted its report and recommendation. It noted Judge Gellada’s Order
which held that the resolution of the city or provincial prosecutor finding probable cause
replaces the recommendation of the investigating prosecutor. In such case, the
resolution recommending the dismissal is superseded, and no longer forms an integral
part of the records of the case and it need not be annexed to the information filed in
court.

ISSUE:
Whether or not the conduct of a preliminary investigation is an executive function

HELD:
Yes. The conduct of a preliminary investigation is primarily an executive function.

Thus, the courts must consider the rules of procedure of the Department of Justice in
conducting preliminary investigations whenever the actions of a public prosecutor is put
in question. The Department of Justic-National Prosecution Service (DOJ-NPS) Manual
states that the resolution of the investigating prosecutor should be attached to the
information only as far as practicable. Such attachment is not mandatory or required
under the rules.